When you think of computer hacking, the stereotypical suspects who come to mind are pimple-faced, pocket-protected teenagers who crack code for kicks. Think Matthew Broderick as the teen hacker in the 1983 film "War Games."
Now picture the computer hacker in pinstriped, double-breasted suits on billable hours.
Would you believe that a respected law firm, corporate defense attorneys in Dallas and Washington, a petrochemical company, and an industry trade association now stand accused of illegally breaking into the Web site of an expert trial witness?
That's the allegation in a lawsuit by occupational-illness expert David Egilman, who is suing Jones, Day, Reavis & Pogue and others alleging high-tech breaking and entering. Today, Egilman plans to amend his lawsuit to include Washington attorney and former federal prosecutor Douglas J. Behr of Keller & Heckman LLP, the District-based Society of the Plastics Industry and Occidental Chemical Corp.
A deposition in the three-month-old lawsuit led Egilman to Behr and the plastics trade group after a Jones Day attorney admitted that he did, in fact, enter Egilman's password-protected Internet site, which he maintains on a home computer at his office.
W. Kelly Stewart, of Jones Day's Dallas office, testified last month that he entered Egilman's site after Jones Day attempted and failed to purchase access online. Then, after getting the pass code from co-counsel Behr, who had guessed it, Stewart entered the Web site, Stewart testified. The material gathered was used to discredit Egilman as an expert witness in a high-profile trial.
It remains to be seen whether a court will consider the conduct illegal. Computer law specialist Marc J. Zwillinger of Kirkland & Ellis said guessing a password, getting in and getting information is a technical violation of the Computer Fraud and Abuse Act.
The story behind the computer hacking traces back to a lawsuit filed in Colorado against a Cleveland company, Brush Wellman Inc. Former workers alleged, based on a trove of documents assembled in part by Egilman, that they were sickened by beryllium while assembling nuclear weapons because of Brush Wellman's negligence.
Egilman, a Brown Medical School internist, is not your ordinary expert witness. The professor is notorious among defense attorneys not only for his devastating grasp of complicated material, but for his zealous antipathy for corporate defendants.
A highly paid expert, Egilman says he uses his proceeds to fund his nonprofit work. Materials he helped gather have brought down a number of asbestos manufacturers.
During the beryllium trial, Jefferson County, Colo., District Judge Frank Plaut took note of Egilman's aggressiveness and placed a gag order on Egilman and the parties in the case.
Then, Egilman restricted access to his Web site to clients and students, to whom he gave passwords so they could get documents they needed for cases and course work. The Jones Day attorneys began showing the plaintiffs' attorneys pages from Egilman's password-protected Web site, and he wanted to know how they had gotten them.
So he decided to set a trap to catch the attorneys in the act. On his password-protected site, he placed a headline that said, "See How Jones, Day Buys a Colorado Judge." When you clicked the link, it referred not to the judge, but to Massachusetts state law about computer hacking.
Egilman never thought the attorneys would take the headline to the judge. If the attorneys ever came to court with the headline, Egilman thought, he would prevail by proving that he'd caught them breaking the law.
That's not how it worked out. The attorneys took it to Plaut. The judge didn't find Egilman's "trap" to be very funny.
(We interrupt this column for some Hearsay advice: When setting a legal trap, don't antagonize the judge.)
Essentially, Plaut threw out Egilman's testimony in the case, describing his behavior as "unprecedented," "inflammatory," "intemperate," "scandalous" and "out of control."
Without the bulk of Egilman's expert evidence, the sickened workers suffered a resounding defeat at trial.
Egilman, infuriated, attempted to get attorneys general in Colorado and Massachusetts, which outlaw computer hacking, to investigate. They declined. He filed an ethics complaint against the Jones Day lawyers in Colorado. That failed, too.
He called the U.S. attorney's office in Rhode Island, which turned it over to the FBI. An agent called Egilman on Friday.
Now Egilman is suing in Brazoria County, Tex., where attorney Stewart was defending another Jones Day client, Occidental Chemical, in a lawsuit in which Egilman also was the plaintiffs' expert.
(Asked who paid for Stewart's clever Web searching on Egilman's site, Stewart said Occidental Chemical, though the material ended up in the Brush Wellman suit. Asked why, Stewart said, "We have to bill someone.")
In his deposition, Stewart said that D.C. lawyer Behr, who represents the Society of the Plastics Industry, had guessed that the passwords were "brown" and "student" to get into Egilman's Web site. Reached last week, Behr declined to comment.
Egilman's attorney, Mark Lanier of Houston, asked Stewart how guessing gets him off the hook for hacking. "I want you to tell me how someone guessing at the password is any different than someone guessing at the combination to a safe [in a bank] or guessing at the combination to a garage door opener to get into someone's house to steal their goods," Lanier asked.
Replied Stewart: "There's a difference between the hypothetical you're talking about, about going into a bank vault and taking money, and a Web site that is not necessarily protected from the public, and it has information about my firm on it that says that my firm paid and bought a state court judge in Colorado."
Legal technology experts tend to disagree. "It is a serious breach of ethics, and it is a potential serious violation of criminal law," said Mark D. Rasch, a technology law specialist and senior vice president for Solutionary Inc. of McLean. "It is the electronic equivalent of breaking into someone's office to get documents for discovery."
Jones Day, whose attorneys declined to comment, should be able to figure out how serious the problem is. The firm brags that it has more than 150 attorneys who specialize in technology law.
Conning the Counsel
How easy is it to defraud a law firm? Just ask 40-year-old Jonathan David Ghertler.
The Ocala, Fla., man apparently needed some money, so posing as a partner in the Los Angeles office of Arnold & Porter, he called the firm's downtown D.C. headquarters and told the director of finance to send $30,000 to a Florida bank account.
Ghertler said the money was for a third-party law firm -- he made up the name Dixon Stokes -- hired to represent a client. He and the client would pay A&P back within 30 days.
Ghertler did the same thing to San Francisco's Heller Ehrman White & McAullife LLP; Baltimore's Piper Marbury Rudnick & Wolfe LLP (now called Piper Rudnick LLP); New York's Skadden Arps Slate Meagher & Flom LLP; Sullivan & Cromwell; and New York's Willkie Farr & Gallagher, bilking them out of sums ranging from $15,000 to $65,000.
How did Ghertler get away with such an obvious scam before he was convicted of wire fraud? By taking advantage of the rapid expansion of law firms that have become so impersonal that finance directors in the home office (oh, by the way, they often say there is no home office) don't know all the attorneys in the various branch offices.
Think about that next time a law firm brags about the seamless integration of myriad firms with offices spread around the globe.
And Furthermore . . .
Progress & Freedom Foundation President Jeffrey A. Eisenach plans to announce today that he's leaving to join his old mentor, James C. Miller III, at Howrey Simon Arnold & White LLP's CapAnalysis Group LLC, which handles antitrust, intellectual property and complex business litigation. The new PFF president: Raymond L. Gifford, chairman of the Colorado Public Utilities Commission and a protege of interior secretary and former Colorado attorney general Gale A. Norton. . . . Last time, we told you about Transactional Records Access Clearinghouse's public-records battle to continue receiving general U.S. attorney case data from the Justice Department. Today, TRAC's attorney, Michael E. Tankersley of Public Citizen's litigation group, plans to sue the Justice Department over the dispute. . . . Nicholas R. Koberstein of the Federal Trade Commission's competition bureau is departing for McDermott, Will & Emery.
Hearsay cracks the code every other week in Washington Business. Send your passwords to email@example.com.